Coleman v. St. Vincent De Paul Society

144 F.R.D. 92, 1992 U.S. Dist. LEXIS 13953, 59 Fair Empl. Prac. Cas. (BNA) 1450, 1992 WL 221301
CourtDistrict Court, E.D. Wisconsin
DecidedAugust 25, 1992
DocketNo. 91-C-1030
StatusPublished
Cited by9 cases

This text of 144 F.R.D. 92 (Coleman v. St. Vincent De Paul Society) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coleman v. St. Vincent De Paul Society, 144 F.R.D. 92, 1992 U.S. Dist. LEXIS 13953, 59 Fair Empl. Prac. Cas. (BNA) 1450, 1992 WL 221301 (E.D. Wis. 1992).

Opinion

DECISION AND ORDER

MYRON L. GORDON, Senior District Judge.

This order addresses the question of whether a litigant, proceeding in forma pauperis [IFP] in a civil rights action, is entitled to have the United States shoulder the expenses associated with subpoenaing witnesses for trial on behalf of an IFP litigant. The above question is one of first impression in this circuit. See Merritt v. Faulkner, 697 F.2d 761, 768 (7th Cir.1983), cert. denied, 464 U.S. 986, 104 S.Ct. 434, 78 L.Ed.2d 366 (1983); McKeever v. Israel, 689 F.2d 1315, 1322 (7th Cir.1982). Having considered the issue in detail, I conclude that the United States must bear such a burden only to the limited extent that an [93]*93IFP litigant can demonstrate the necessity of the testimony of each witness requested to be subpoenaed for trial. See Rules 401, 402, 403, 611, Federal Rules of Evidence.

I. Facts

On September 23, 1991, pro se plaintiff Willie G. Coleman filed a complaint alleging that the defendant, his former employer, St. Vincent DePaul Society [St. Vincent], unlawfully terminated his employment. As relief, Mr. Coleman seeks, among other remedies, reinstatement, back pay, and “$250,000 for the medical assistance that was cut off because of this inconvenience, debts that have been accumulated, and my credibility that has been destroyed.”

In his complaint, Mr. Coleman alleges that St. Vincent treated him differently than other employees. Mr. Coleman specifically alleges that St. Vincent had a double standard concerning the practice of employees “punching” the time cards of fellow employees — allowing this practice in some instances but not in others. Mr. Coleman’s complaint implies that St. Vincent disciplined, and ultimately terminated him, for punching the time card of a fellow employee. Additionally, Mr. Coleman alleges that, although he was an Assistant Manager, St. Vincent denied him access to manager’s meetings while allowing other employees who were not managers to participate in such meetings.

In his complaint, Mr. Coleman makes no reference to St. Vincent’s treating him differently because of his race. However, the exhibits attached to Mr. Coleman’s complaint indicate that Mr. Coleman is African-American and that he believes St. Vincent discriminated against, and terminated him (on April 23,1990), because of his race.

On November 19, 1991, this court granted Mr. Coleman leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. I concluded that Mr. Coleman’s complaint, liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972), states an arguable claim for relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. Since that time, the action has proceeded toward a court trial scheduled to commence September 1, 1992.

Pursuant to the court’s scheduling order, St. Vincent served and filed a four-person witness list on June 17,1992. Mr. Coleman also served and filed a witness list, however, his list actually consisted of two lists, one of nine names and the other of thirty-three names. Four of the individuals on the nine-person list actually appeared on the thirty-three-person list; thus Mr. Coleman’s “net” witness list actually consisted of thirty-eight names. By letter, I subsequently requested that Mr. Coleman combine his “two lists” into one list.of only those persons that Mr. Coleman actually would call to testify at trial. Mr. Coleman’s revised list, served and filed on July 21,1992, consisted of seventeen names, two of which appeared on St. Vincent’s witness list.

At the August 4, 1992, pretrial conference, the question was raised whether the court would order the issuance of subpoenas, at government expense, to Mr. Coleman’s expected trial witnesses. See generally Rule 45, Federal Rules of Civil Procedure. The court took the matter under advisement. However, before concluding the pretrial conference, the court requested that Mr. Coleman reduce his witness list still further to include only those witnesses essential to the presentation of his case. Furthermore, the court directed Mr. Coleman to serve and file a writing explaining the evidentiary contribution and materiality of each witness he proposed to call on his behalf.

Following the pretrial conference, Mr. Coleman served and filed his second amended witness list. This filing consisted of thirteen names along with brief explanations as to the expected testimony of each witness. Only one of the thirteen names on this list appeared on St. Vincent’s four-person witness list of June 17,1992. Finally, to facilitate the issuance of subpoenas, if any, ordered by the court, Mr. Coleman was asked to provide the court with the addresses of the thirteen individuals on his “final” witness list.

[94]*94Mr. Coleman’s “address” submission included thirteen names but only provided addresses for ten of the thirteen persons on his “final” witness list. One of the three unaccounted for names on Mr. Coleman’s “address” submission was the name of a person on Mr. Coleman’s “final” witness list but for whom Mr. Coleman could not locate a complete address. The remaining two names on Mr. Coleman’s “address” submission were individuals who did not appear on Mr. Coleman’s “final” thirteen-person witness list but had appeared on Mr. Coleman’s original two-list, thirty-eight-person witness list.

It is with this background that the court must now consider whether to order the issuance of subpoenas on behalf of Mr. Coleman to compel some or all of the individuals on his “final” thirteen-person witness list to testify at trial. However, before proceeding to that question, the threshold issue of who will pay the expenses of any subpoenas ordered issued on Mr. Coleman’s behalf must be addressed in light of the fact that Mr. Coleman is proceeding in forma pauperis in this litigation.

II. Analysis

Rule 45(b)(1), Federal Rules of Civil Procedure, recently amended and effective December 1, 1991, provides that:

Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law.

Witness fees are $40 per day. 28 U.S.C. § 1821(b). Witnesses must also be paid for their actual travel expenses. 28 U.S.C. § 1821(c).

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144 F.R.D. 92, 1992 U.S. Dist. LEXIS 13953, 59 Fair Empl. Prac. Cas. (BNA) 1450, 1992 WL 221301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coleman-v-st-vincent-de-paul-society-wied-1992.